Nebraska v. Parker

• Citation: 136 S.Ct. 1072,577 U.S. 481,194 L.Ed.2d 152
• Decision Date: 22 March 2016
• Docket Number: No. 14–1406.,14–1406.
• Parties: NEBRASKA, et al., Petitioners v. Mitch PARKER, et al.
• Court: United States Supreme Court

577 U.S. 481

136 S.Ct. 1072

194 L.Ed.2d 152

NEBRASKA, et al., Petitioners

v.Mitch PARKER, et al.

No. 14–1406.

Supreme Court of the United States

Argued Jan. 20, 2016.

Decided March 22, 2016.

James D. Smith, Solicitor General, for Petitioners.

Paul D. Clement, Washington, DC, for Private Respondents.

Allon Kedem, Washington, DC, for Federal Respondent.

Douglas J. Peterson, Nebraska Attorney General, James D. Smith, Solicitor General of Nebraska, Ryan S. Post, David A. Lopez, Assistant Attorneys General, Lincoln, NE, for the State of Nebraska.

Gene Summerlin, Marnie Jensen, Mark D. Hill, Husch Blackwell, LLP, Lincoln, NE, for Individual & Village Petitioners.

Donald B. Verrilli, Jr. Solicitor General, John C. Cruden, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Allon Kedem, Assistant to the Solicitor General, William B. Lazarus, Mary Gabrielle Sprague, Katherine J. Barton, Daron Carreiro, Attorneys, Department of Justice, Washington, DC, for the United States.

Maurice R. Johnson, Attorney General, Omaha Tribe of Nebraska, Macy, NE, Paul D. Clement, Jeffrey M. Harris, Subash S. Iyer, Bancroft PLLC, Washington, DC, Nora M. Kane, Stinson Leonard Street LLP, Mark J. Peterson, Peterson Law Office, LLC, Patricia A. Zieg, Patricia A. Zieg Law Offices, LLC, Omaha, NE, for Omaha Tribal Council Respondents.

Justice THOMAS delivered the opinion of the Court.

The village of Pender, Nebraska sits a few miles west of an abandoned right-of-way once used by the Sioux City and Nebraska Railroad Company. We must decide whether Pender and surrounding Thurston County, Nebraska, are within the boundaries of the Omaha Indian Reservation or whether the passage of an 1882 Act empowering the United States Secretary of the Interior to sell the Tribe's land west of the right-of-way "diminished" the reservation's boundaries, thereby "free[ing]" the disputed land of "its reservation status." Solem v. Bartlett, 465 U.S. 463, 467, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). We hold that Congress did not diminish the reservation in 1882 and that the disputed land is within the reservation's boundaries.

I

A

Centuries ago, the Omaha Tribe settled in present-day eastern Nebraska. By the mid–19th century, the Tribe was destitute and, in exchange for much-needed revenue, agreed to sell a large swath of its land to the United States. In 1854, the Tribe entered into a treaty with the United States to create a 300,000–acre reservation. Treaty with the Omahas (1854 Treaty), Mar. 16, 1854, 10 Stat. 1043. The Tribe agreed to "cede" and "forever relinquish all right and title to" its land west of the Mississippi River, excepting the reservation, in exchange for $840,000, to be paid over 40 years. Id., at 1043–1044.

In 1865, after the displaced Wisconsin Winnebago Tribe moved west, the Omaha Tribe agreed to "cede, sell, and convey" an additional 98,000 acres on the north side of the reservation to the United States for the purpose of creating a reservation for the Winnebagoes. Treaty with the Omaha Indians (1865 Treaty), Mar. 6, 1865, 14 Stat. 667–668. The Tribe sold the land for a fixed sum of $50,000. Id ., at 667.

In 1872, the Tribe again expressed its wish to sell portions of the reservation, but Congress took a different tack than it had in the 1854 and 1865 Treaties. Instead of purchasing a portion of the reservation for a fixed sum, Congress authorized the Secretary of the Interior to survey, appraise, and sell up to 50,000 acres on the western side of the reservation "to be separated from the remaining portion of said reservation" by a north-south line agreed to by the Tribe and Congress. Act of June 10, 1872 (1872 Act), ch. 436, § 1, 17 Stat. 391. Under the 1872 Act, a nonmember could purchase "tracts not exceeding one hundred and sixty acres each" or "the entire body offered." Ibid . Proceeds from any sales would be "placed to the credit of said Indians on the books of the treasury of the United States." Ibid . But the proceeds were meager. The 1872 Act resulted in only two sales totaling 300.72 acres.

Then came the 1882 Act, central to the dispute between petitioners and respondents. In that Act, Congress again empowered the Secretary of the Interior "to cause to be surveyed, if necessary, and sold" more than 50,000 acres lying west of a right-of-way granted by the Tribe and approved by the Secretary of the Interior in 1880 for use by the Sioux City and Nebraska Railroad Company. Act of Aug. 7, 1882 (1882 Act), 22 Stat. 341. The land for sale under the terms of the 1882 Act overlapped substantially with the land Congress tried, but failed, to sell in 1872. Once the land was appraised "in tracts of forty acres each," the Secretary was "to issue [a] proclamation" that the "lands are open for settlement under such rules and regulations as he may prescribe." §§ 1, 2, id., at 341. Within one year of that proclamation, a nonmember could purchase up to 160 acres of land (for no less than $2.50 per acre) in cash paid to the United States, so long as the settler "occup[ied]" it, made "valuable improvements thereon," and was "a citizen of the United States, or ... declared his intention to become such." § 2, id., at 341. The proceeds from any land sales, "after paying all expenses incident to and necessary for carrying out the provisions of th[e] act," were to "be placed to the credit of said Indians in the Treasury of the United States." § 3, id., at 341. Interest earned on the proceeds was to be "annually expended for the benefit of said Indians, under the direction of the Secretary of the Interior." Ibid.

The 1882 Act also included a provision, common in the late 19th century, that enabled members of the Tribe to select individual allotments, §§ 5–8, id., at 342–343, as a means of encouraging them to depart from the communal lifestyle of the reservation. See Solem, supra, at 467, 104 S.Ct. 1161. The 1882 Act provided that the United States would convey the land to a member or his heirs in fee simple after holding it in trust on behalf of the member and his heirs for 25 years. § 6, 22 Stat. 342. Members could select allotments on any part of the reservation, either east or west of the right-of-way. § 8, id., at 343.

After the members selected their allotments—only 10 to 15 of which were located west of the right-of-way—the Secretary proclaimed that the remaining 50,157 acres west of the right-of-way were open for settlement by nonmembers in April 1884. One of those settlers was W.E. Peebles, who "purchased a tract of 160 acres, on which he platted the townsite for Pender." Smith v. Parker, 996 F.Supp.2d 815, 828 (D.Neb.2014).

B

The village of Pender today numbers 1,300 residents. Most are not associated with the Omaha Tribe. Less than 2% of Omaha tribal members have lived west of the right-of-way since the early 20th century.

Despite its longstanding absence, the Tribe sought to assert jurisdiction over Pender in 2006 by subjecting Pender retailers to its newly amended Beverage Control Ordinance. The ordinance requires those retailers to obtain a liquor license (costing $500, $1,000, or $1,500 depending upon the class of license) and imposes a 10% sales tax on liquor sales. Nonmembers who violate the ordinance are subject to a $10,000 fine.

The village of Pender and Pender retailers, including bars, a bowling alley, and social clubs, brought a federal suit against members of the Omaha Tribal Council in their official capacities to challenge the Tribe's power to impose the requirements of the Beverage Control Ordinance on nonmembers. Federal law permits the Tribe to regulate liquor sales on its reservation and in "Indian country" so long as the Tribe's regulations are (as they were here) "certified by the Secretary of the Interior, and published in the Federal Register." 18 U.S.C. § 1161. The challengers alleged that they were neither within the boundaries of the Omaha Indian Reservation nor in Indian country and, consequently, were not bound by the ordinance.

The State of Nebraska intervened on behalf of the plaintiffs, and the United States intervened on behalf of the Omaha Tribal Council members. The State's intervention was prompted, in part, by the Omaha Tribe's demand that Nebraska share with the Tribe revenue that the State received from fuel taxes imposed west of the right-of-way. In addition to the relief sought by Pender and the Pender retailers, Nebraska sought a permanent injunction prohibiting the Tribe from asserting tribal jurisdiction over the 50,157 acres west of the abandoned right-of-way.

After examining the text of the 1882 Act, as well as the contemporaneous and subsequent understanding of the 1882 Act's effect on the reservation boundaries, the District Court concluded that Congress did not diminish the Omaha Reservation in 1882. 996 F.Supp.2d, at 844. Accordingly, the District Court denied the plaintiffs' request for injunctive and declaratory relief barring the Tribe's enforcement of the Beverage Control Ordinance. The Eighth Circuit affirmed. Smith v. Parker, 774 F.3d 1166, 1168–1169 (2014). We granted certiorari to resolve whether the 1882 Act diminished the Omaha Reservation. 576 U.S. ––––, 136 S.Ct. 27, 192 L.Ed.2d 998 (2015).

II

We must determine whether Congress "diminished" the Omaha Indian Reservation in 1882. If it did so, the State now has jurisdiction over the disputed land. Solem, 465 U.S., at 467, 104 S.Ct. 1161. If Congress, on the other hand, did not diminish the reservation and instead only enabled nonmembers to purchase land within the reservation, then federal, state, and tribal authorities share jurisdiction over these "opened" but undiminished reservation lands. Ibid .

The framework we employ to determine whether an Indian reservation has been diminished is well settled. Id., at 470–472, 104 S.Ct. 1161. "[O]nly Congress can divest a reservation of its land and diminish its boundaries," and its intent to do so must be clear. Id., at 470, 104 S.Ct. 1161. To assess whether an Act of Congress diminished a...